Dapo Akande, Professor of Public International Law at the University of Oxford and Co-Director of ELAC and the Oxford Martin Programme on HRFG, and Emanuela Gillard, senior research fellow at ELAC & Research Associate with HRFG, have led the project.

Today, after years of research, is the official launch of the Guidance at the UN. Ryan Goodman will be moderating the panel of experts at the UN launch this morning.

“A firm understanding of the legal framework regulating humanitarian relief operations in situations of armed conflict is essential for all those with a role to play in ensuring that people in need have the best chance of accessing and receiving life-saving assistance,” said Stephen O’Brien, UN Emergency Relief Coordinator and Under-Secretary-General for Humanitarian Affairs, in the foreword to the Guidance.

Come back for more: Just Security will be hosting a joint series with EJIL Talk! on the Guidance.

In the meantime, we wanted to highlight a key excerpt: Section E of the document, which deals with “Arbitrary Withholding of Consent.” It essentially states that: Yes, State consent is required to deliver humanitarian relief within its territory, but a State cannot withhold its consent “arbitrarily.” The Guidance then details what “arbitrary” means under existing international law.

E. Arbitrary Withholding of Consent

43. Two conditions must be met before the issue of consent to humanitarian relief operations arises. First, civilians must be inadequately provided with essential supplies and the party to the conflict responsible for meeting their needs must not be providing the requisite assistance. Second, offers of services must have been made by actors capable of carrying out relief operations that are exclusively humanitarian and impartial in character and conducted without any adverse distinction.

44. If these conditions are met, consent to humanitarian relief operations may not be arbitrarily withheld. This principle, that the state whose consent is required may not withhold it arbitrarily, is derived from (i) the need to provide an interpretation of the relevant treaty texts, which gives effect to all aspects of those provisions; (ii) the drafting history of those provisions; and (iii) practice subsequent to the adoption of the treaties.

45. The text of Article 70 of AP I and Article 18(2) of AP II provide that as long as the two preliminary conditions mentioned in the previous paragraph are met humanitarian relief operations “shallbe undertaken” but that this is “subject to the agreement” of the state concerned in such relief actions. As already discussed, the last phrase makes it clear that consent is required. However, the use of the word “shall” also suggests that acceptance of humanitarian relief is not entirely discretionary. Interpreting the texts in a manner which insists on the requirement of consent but which subjects such consent to some limits, gives effect to both aspects of the provision. Such an interpretation is in line with the principle that a treaty must not be interpreted in such a way as to render parts of the text redundant or meaningless.

46. The requirement that consent must not be arbitrarily withheld finds support in the negotiating history of the Additional Protocols. It was understood during those negotiations that states did not have “absolute and unlimited freedom to refuse their agreement to relief actions”. A state refusing consent had to do so for “valid reasons”, not for “arbitrary or capricious ones”.

47. This position has since been reflected in subsequent formulations of the rules on humanitarian assistance, which expressly note that consent may not be arbitrarily withheld. The principle is to be found, for example, in the Guiding Principles on Internal Displacement; the Resolution on Humanitarian Assistance adopted by the Institute of International Law in 2003; and, beyond situations of armed conflict, in the work of the International Law Commission (ILC) on the protection of persons in the event of disasters.In addition, the UN Security Council, the UN General Assembly, the UN Human Rights Council, and the UN Human Rights Committee have all addressed the issue of the legality of obstructions to humanitarian access from the perspective of “arbitrary denial” of access.

48. Under international law the notion of arbitrariness has a broad meaning. While there is no single or all-encompassing definition, international humanitarian law, international human rights law, and general principles of public international law provide guidance on the type of conduct that would justify the conclusion that a state is acting arbitrarily in withholding consent to humanitarian relief operations.

49. Essentially, consent is withheld arbitrarily if (i) it is withheld in circumstances that result in the violation by a state of its obligations under international law with respect to the civilian population in question; or (ii) the withholding of consent violates the principles of necessity and proportionality; or (iii) consent is withheld in a manner that is unreasonable, unjust, lacking in predictability or that is otherwise inappropriate.

1. Withholding of consent that violates a state’s obligations under international law with respect to the civilian population in question

50. Where international law prohibits arbitrary action, conduct that would violate a state’s other obligations under international law is regarded as arbitrary. In particular, withholding consent to humanitarian relief operations in circumstances that would result in the violation by a state of its obligations under international law with respect to the civilian population in question would be arbitrary. This follows from the general principle according to which the interpretation of a treaty must be carried out taking into account any relevant rules of international law applicable in the relations between the parties.

51. A non-exhaustive list of circumstances where withholding consent to humanitarian relief operations would violate a state’s obligations, and thus be arbitrary, includes:

withholding consent to humanitarian relief operations in situations where the civilian population is inadequately supplied and the state intends to cause, contribute to, or perpetuate starvation. This would violate the prohibition on starvation of the civilian population as a method of warfare.

Withholding consent to medical relief operations, including on the ground that medical supplies, equipment, and personnel could treat wounded enemy combatants. The wounded and sick – including enemy combatants – must receive, to the fullest extent practicable and with the least possible delay, the medical care required by their condition. No distinction may be made on any grounds other than medical ones. Withholding consent to medical relief operations as they might assist wounded and sick enemy combatants would violate this rule. Moreover, the same medical supplies, equipment, and personnel are also likely to be necessary for the civilian population, which would also be denied the medical relief to which it is entitled.

Withholding consent to humanitarian relief operations in order to punish the civilian population for acts for which it is not responsible, such as acts committed by the party to the conflict with effective control over it. This would violate the prohibition on collective punishment.

Selective withholding of consent to humanitarian relief operations with the intent or effect of discriminating against a particular group or section of the civilian population. For example, systematically rejecting offers to conduct humanitarian relief operations in areas populated by ethnic groups perceived as favouring the enemy. This would violate the prohibition on discrimination.

Withholding of consent to humanitarian relief operations that violates fundamental human rights as applicable in situations of armed conflict. This includes withholding consent in circumstances where doing so would violate the rights to bodily integrity, or prevent the satisfaction of the minimum core of relevant economic, cultural, and social rights, such as the rights to an adequate standard of living, and to essential health and medical services.

2. Withholding of consent in violation of the principles of necessity and proportionality

52. International tribunals and other bodies that have interpreted the concept of arbitrariness have consistently held that in order not to be arbitrary, a measure must be necessary, no more than necessary, and proportionate to the end sought to be achieved. Where consent to relief operations is withheld for a legitimate reason, it will nonetheless be arbitrary if it exceeds what is necessary in the circumstances, and thus is disproportionate. Limitations in terms of time, duration, location, and affected goods and services must not go beyond what is absolutely necessary to achieve the legitimate aim.

3. Withholding of consent in a manner that is unreasonable, that may lead to injustice or to lack of predictability, or that is otherwise inappropriate

53. Consent is also withheld arbitrarily if it is withheld in a manner that is unreasonable, or that may lead to injustice or to lack of predictability, or that is otherwise inappropriate.

54. A possible example of this would be a total failure to provide reasons for withholding consent. Such a failure to provide reasons would give rise to a lack of predictability and would make it impossible to assess whether there are valid reasons underlying the withholding of consent. The provision of reasons allows compliance with the substantive obligations relating to humanitarian relief operations to be assessed. As the ILC has noted in relation to assistance in natural disasters, “[t]he provision of reasons is fundamental to establishing the good faith of the affected state’s decision to withhold consent. The absence of reasons may act to support an inference that the withholding of consent is arbitrary.” Withholding consent without providing any reasons gives rise to a rebuttable presumption of arbitrariness.

E(i)Consent to humanitarian relief operations must not be withheld arbitrarily if:

civilians are inadequately provided with essential supplies; and

the party responsible for meeting their needs does not provide the necessary assistance; and

offers of services have been made by actors capable of carrying out relief operations that are exclusively humanitarian and impartial in character, and conducted without any adverse distinction.

E(ii)Consent is withheld arbitrarily if it is withheld:

in circumstances that result in a violation of obligations under international law with respect to the civilian population in question, including, in particular, obligations under international humanitarian law and international human rights law; or

in violation of the principles of necessity and proportionality; or

in a manner that is unreasonable, or that may lead to injustice or lack of predictability, or that is otherwise inappropriate.